While Sir Elton John may be unhappy to hear the court refer to the lyrics of one of his immortal songs as “common,” that rationale has caused the court to dismiss a lawsuit alleging that John had committed copyright infringement. In April, Guy Hobbs brought suit against John, claiming that John’s 1985 song, “Nikita,” impermissibly stole the lyrics of Hobbs’ unpublished song, “Natasha.” Hobbs had written and copyrighted “Natasha” in the early 1980s after becoming romantically involved with a Ukrainian waitress aboard a Russian cruise ship. The song explains, “A Ukraine girl and a UK guy just never stood a chance.” After several music publishers, including John’s, rejected Hobbs’ lyrics, Hobbs forgot his dreams of musical stardom and returned to his previous career as a photojournalist. In 2001, Hobbs learned of John’s “Nikita” for the first time and ultimately brought suit just this year.

To establish a copyright claim, Hobbs had to demonstrate (1) ownership of a valid copyright, and (2) unauthorized copying of constituent elements of the work that are original. The second prong is fulfilled if a plaintiff can demonstrate (a) that the defendant had access to the original work, and (b) that the two pieces are “substantially similar.” While Hobbs might have established ownership of a valid copyright and John’s access to the lyrics via his music publisher, the court ruled that the two pieces were not substantially similar. Noting some similarities, including a theme of impossible love between a Western man and a Communist woman during the Cold War, descriptions of pale eyes, references to sending mail, and common three-syllable Russian names, among other things, the court dismissed these similarities under the scènes à faire doctrine. This principle states that “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic” are not protected under copyright law. The court systematically dismissed each alleged similiarity as a theme common to popular music and thus unprotectable.

While the scènes à faire doctrine seems necessary to promote continued creativity, I wonder how expansive the doctrine will become as technology gives a voice to all ideas of aspiring songwriters (good or bad) and makes access to those songs instantaneous. Moreover, while a love affair between a Western man and a Communist woman might have once been a common theme in songs and films of the Cold War era, should it still be considered an “indispensable” or “standard” topic?

Furthermore, one of Hobbs’ argument caught my eye. He alleged that, while the elements of his song may not be protectable individually, the unique combination of these elements creates a protectable work. The court easily rejected this argument, citing the Seventh Circuit for the principle that “if the copied parts are not, on their own, protectable expression, then there can be no claim for infringement of the reproduction right.” Yet, the famed Supreme Court case of Feist Publications v. Rural Telephone Service Co. established that compilations like a telephone book are copyrightable based upon the publisher’s arrangement of the noncopyrightable facts or information. Wouldn’t such an argument be analogous here? While the particular elements of Hobbs’ songs cannot be protected, much like facts in a telephone book, Hobbs’ chosen arrangement of those elements might be protected. The court, of course, might still determine that the two works are not ultimately substantially similar, but I’m not sure Hobbs’ original argument should have been so easily dismissed.

Regardless of my own ponderings, the court’s decision certainly upholds the policies behind the Copyright Act, encouraging free and independent creativity, so break out your pens and start composing the next epic Cold War ballad.

3 Responses to Elton John is Still Standing

Erin brings up an interesting point when considering how far the scènes à faire doctrine may extend as technology exposes people to more ideas instantaneously. Relatedly, what falls within the doctrine may also expand as globalization allows for people of different cultures and backgrounds to share their scènes à faire. This could allow for the common love story, for instance, to evolve to include other participants or themes. This may go back to Erin’s consideration of whether the love song’s story in dispute, which was particularly circumstantial, should be considered a scènes à faire today. The story of a boy and girl from different, conflicting backgrounds is not a unique storyline, which as Caitlin pointed out, is likely why the court decided against infringement. I wonder how long it takes for a story or paradigm to become scènes à faire and whether our evolving views of relationships will affect the way copyright cases are decided in the future.

While Hobbs’ argument that the unique combination of the song’s elements are copyrightable seems on its face somewhat persuasive, I don’t believe the court was wrong for quickly dismissing that argument. Although the selection, coordination, and arrangement of ideas, as indicated by the Court’s decision in Feist, can be copyrightable, it is generally afforded only a thin copyright. In Feist, the white pages did not meet the test for originality because listing data in alphabetical order was a common practice. While the threshold for originality is generally low, de minimis creativity is not enough. Arguably, the same is true for Hobbs’ song Natasha. The underlying theme of the song is just an expression of an idea, and expressions of an idea are not copyrightable. Moreover, if the selection and arrangement are common practice — for example the chronological structure of telling a love story — then the compilation would not warrant copyright protection.

This fact pattern appears to be a common fact pattern alleged in copyright cases. This “commonality” question was addressed in Nichols v. Universal, a Second Circuit decision in 1930. In Nichols, plaintiff wrote a play and defendant directed a movie, both involved a love story between a man and a woman from different religious backgrounds – one was Catholic and the other Jewish. Judge Learned Hand held that the plaintiff’s play is not copyrightable, the plot was just an idea and to some extent went into the public domain. Although there existed common qualities between the characters, the common qualities were simple and stereotypical, thus did not exude the necessary level of originality. Comparing to the case at hand, I do not think it should make a difference that the songs were written about a theme common to the Cold War era. The purpose of copyright is to protect authors, and to provide authors with incentives to create socially beneficial works. The fact that the theme is about a past era further suggests that such ideas are in the public domain.

I agree with Hunter that the delay in bringing the suit played an important factor in the court’s decision.

While this suit doesn’t appear to be untimely under the law, I can’t help but wonder whether the 27 year delay between the original release of “Nikita” and Hobbs’s filing suit had some influence on the decision. The song was a global success (although admittedly it wasn’t a #1 hit in Hobbs’s home country of South Africa), so the suit seems a bit late in coming to me. I also have a bit of a hard time stomaching Hobbs’s contention that he noticed the lyrical similarities between “Nikita” and his “Natasha” in 2001 and then spent 11 years trying to get in touch with John and Taupin before eventually taking legal action.